Judgment rendered November 6, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,674-CW
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
ERICA L. DYER Respondent
versus
MONTCLAIRE PARC, L.L.C. Applicants D/B/A MONTCLAIR PARKS ASSISTED LIVING AND THE CHATEAUS AT MONTCLAIRE, L.L.C. D/B/A MONTCLAIR PARKS ASSISTED LIVING
On Application for Writs from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 643,400
Honorable Brady D. O’Callaghan, Judge
BRADLEY, MURCHISON, KELLY Counsel for Applicants & SHEA, LLC By: Jacque Paul Biggs Lionel David Adams
RICE & KENDIG, LLC Counsel for Respondent, By: Franeka Dorianna Taylor Erica L. Dyer
PETTIETTE, ARMAND, DUNKELMAN, Counsel for Respondent, WOODLEY & CROMWELL, LLP City of Shreveport By: Joseph Samuel Woodley
Before STONE, STEPHENS, and ROBINSON, JJ. ROBINSON, J.
Montclaire Parc and The Chateaus at Montclaire assisted living
facilities (“ALFs”) applied for a writ with this court seeking supervisory
review of the trial court’s denial of their exception of no cause of action.
The writ was granted to docket. For the following reasons, the writ is
recalled as improvidently granted and denied. The ruling denying the
exception of no cause of action is affirmed.
FACTS
Erica Dyer filed suit against the ALFs alleging that she lost control of
the Ford pickup truck that she was driving when it encountered ice in the
roadway of East Kings Highway in Shreveport on the morning of December
23, 2022. The loss of control caused the truck to flip onto the passenger
side, allegedly resulting in injuries to Dyer. She contended that temperatures
in Shreveport fell below freezing on that date, and that area residents had
been warned to wrap pipes and leave a drip in the waterline. Dyer alleged
that although it was unknown whether the ALFs took steps to avoid freezing
waterlines, their water lines froze and caused water to flood and then freeze
the roadway. She further alleged that the ALFs contacted a plumber to fix
the leaking pipe but did nothing to clean up the ice in the roadway, apply
sand to the roadway, or to warn motorists of the road condition. She
maintained there was no precipitation or other condition that day which
would have caused her to be concerned with ice on the roadway.
Dyer contended the accident was caused by the ALFs’ fault in that
they: (1) maintained the premises in an unsafe and hazardous condition; (2)
failed to timely repair the ruptured and leaking water line; (3) failed to warn
motorists of the ice which formed on East Kings Highway as a result of the ruptured and leaking waterline; (4) failed to contact the Shreveport Police
Department in order to provide traffic control; and (5) failed to place sand on
the icy portions of the roadway.
The ALFs filed an answer and raised the exceptions of no cause of
action and vagueness. They maintained that Dyer failed to plead a legally
valid cause of action under La. C.C. art. 2317.1. They argued there is no
basis under Louisiana law to impose a duty on a premises owner to protect a
passing motorist from an alleged dangerous condition outside their premises
on a public roadway that they do not own, control, or have any duty to
maintain. The ALFs further argued they owed duties of care to their
residents, employees, visitors, and invitees, but not to Dyer, who had no
relationship with them which would give rise to a legal duty.
The ALFs maintained that Dyer did not allege that the ice on the road
was caused by any ruin, vice, or defect on their premises, or that they knew
or should have known of any such ruin, vice, or defect. They further
maintained that while several Louisiana courts have noted the possibility of
a duty owed by a premises owner to warn of defects on adjacent property,
that duty is owed only to an owner’s patrons, tenants, or invitees.
In response to the exception of no cause of action, Dyer argued that
the defect on the ALFs’ property was the frozen and ruptured waterlines.
In its ruling denying the exception of no cause of action, the court
stated that it agreed with the ALFs that on the facts alleged in this case, it
will be difficult for Dyer to make the necessary showing. However, the
court could not discount or assume that no evidence exists which would
meet the applicable standard. The court concluded that while the weather
caused the accident and that the duty to passing motorists may be defined 2 very narrowly, it could not say that there are no possible facts, such as actual
knowledge of the road condition and its point of origin from a defect on the
ALFs’ property, that could meet Dyer’s burden.
The ALFs applied for a supervisory writ to this court. On January 25,
2024, this court granted the writ to docket. While the writ was pending,
Dyer amended her petition to add the City of Shreveport as a defendant.
DISCUSSION
The ALFs argue that Dyer has no viable cause of action against them
as a matter of law. They contend that allowing the suit to proceed will result
in an unjustified expansion of a premises owner’s potential liability to
unknown third parties injured on an adjacent public roadway.
The function of the peremptory exception of no cause of action is to
test the legal sufficiency of the petition, which is done by determining
whether the law affords a remedy on the facts alleged in the pleading.
Ramey v. DeCaire, 03-1299 (La. 3/19/04), 869 So. 2d 114. La. C.C.P. art.
931 states that no evidence may be introduced at any time to support or
controvert the objection that the petition fails to state a cause of action.
Therefore, the court reviews the petition and accepts well-pleaded
allegations of fact as true. Ramey, supra. All doubts are resolved in favor of
the sufficiency of the petition to afford litigants their day in court. Jackson
v. City of New Orleans, 12-2742 (La. 1/28/14), 144 So. 3d 876. The issue at
the trial of the exception of no cause of action is whether, on the face of the
petition, the plaintiff is legally entitled to the relief sought. Ramey, supra.
An appellate court’s review of a trial court’s ruling sustaining or
denying an exception of no cause of action is de novo because the exception
raises a question of law, and the trial court’s decision is based only on the 3 sufficiency of the petition. Grayson v. Gulledge, 55,214 (La. App. 2 Cir.
9/27/23), 371 So. 3d 1133, writ denied, 23-01437 (La. 1/10/24), 376 So. 3d
847.
The ALFs argue that the trial court erred in overruling the exception
of no cause of action because Dyer failed to plead facts stating a claim under
La. C.C. art. 2317.1 and because they did not owe a legal duty under the
facts alleged to protect Dyer from harm under art. 2317.1 Dyer counters that
she pled sufficient facts to establish a cause of action pursuant to La. C.C.
art. 2317.1.
The owner or custodian of a thing is answerable for damage
occasioned by its ruin, vice, or defect, only upon a showing that he knew or,
in the exercise of reasonable care, should have known of the ruin, vice, or
defect which caused the damage, that the damage could have been prevented
Free access — add to your briefcase to read the full text and ask questions with AI
Judgment rendered November 6, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,674-CW
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
ERICA L. DYER Respondent
versus
MONTCLAIRE PARC, L.L.C. Applicants D/B/A MONTCLAIR PARKS ASSISTED LIVING AND THE CHATEAUS AT MONTCLAIRE, L.L.C. D/B/A MONTCLAIR PARKS ASSISTED LIVING
On Application for Writs from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 643,400
Honorable Brady D. O’Callaghan, Judge
BRADLEY, MURCHISON, KELLY Counsel for Applicants & SHEA, LLC By: Jacque Paul Biggs Lionel David Adams
RICE & KENDIG, LLC Counsel for Respondent, By: Franeka Dorianna Taylor Erica L. Dyer
PETTIETTE, ARMAND, DUNKELMAN, Counsel for Respondent, WOODLEY & CROMWELL, LLP City of Shreveport By: Joseph Samuel Woodley
Before STONE, STEPHENS, and ROBINSON, JJ. ROBINSON, J.
Montclaire Parc and The Chateaus at Montclaire assisted living
facilities (“ALFs”) applied for a writ with this court seeking supervisory
review of the trial court’s denial of their exception of no cause of action.
The writ was granted to docket. For the following reasons, the writ is
recalled as improvidently granted and denied. The ruling denying the
exception of no cause of action is affirmed.
FACTS
Erica Dyer filed suit against the ALFs alleging that she lost control of
the Ford pickup truck that she was driving when it encountered ice in the
roadway of East Kings Highway in Shreveport on the morning of December
23, 2022. The loss of control caused the truck to flip onto the passenger
side, allegedly resulting in injuries to Dyer. She contended that temperatures
in Shreveport fell below freezing on that date, and that area residents had
been warned to wrap pipes and leave a drip in the waterline. Dyer alleged
that although it was unknown whether the ALFs took steps to avoid freezing
waterlines, their water lines froze and caused water to flood and then freeze
the roadway. She further alleged that the ALFs contacted a plumber to fix
the leaking pipe but did nothing to clean up the ice in the roadway, apply
sand to the roadway, or to warn motorists of the road condition. She
maintained there was no precipitation or other condition that day which
would have caused her to be concerned with ice on the roadway.
Dyer contended the accident was caused by the ALFs’ fault in that
they: (1) maintained the premises in an unsafe and hazardous condition; (2)
failed to timely repair the ruptured and leaking water line; (3) failed to warn
motorists of the ice which formed on East Kings Highway as a result of the ruptured and leaking waterline; (4) failed to contact the Shreveport Police
Department in order to provide traffic control; and (5) failed to place sand on
the icy portions of the roadway.
The ALFs filed an answer and raised the exceptions of no cause of
action and vagueness. They maintained that Dyer failed to plead a legally
valid cause of action under La. C.C. art. 2317.1. They argued there is no
basis under Louisiana law to impose a duty on a premises owner to protect a
passing motorist from an alleged dangerous condition outside their premises
on a public roadway that they do not own, control, or have any duty to
maintain. The ALFs further argued they owed duties of care to their
residents, employees, visitors, and invitees, but not to Dyer, who had no
relationship with them which would give rise to a legal duty.
The ALFs maintained that Dyer did not allege that the ice on the road
was caused by any ruin, vice, or defect on their premises, or that they knew
or should have known of any such ruin, vice, or defect. They further
maintained that while several Louisiana courts have noted the possibility of
a duty owed by a premises owner to warn of defects on adjacent property,
that duty is owed only to an owner’s patrons, tenants, or invitees.
In response to the exception of no cause of action, Dyer argued that
the defect on the ALFs’ property was the frozen and ruptured waterlines.
In its ruling denying the exception of no cause of action, the court
stated that it agreed with the ALFs that on the facts alleged in this case, it
will be difficult for Dyer to make the necessary showing. However, the
court could not discount or assume that no evidence exists which would
meet the applicable standard. The court concluded that while the weather
caused the accident and that the duty to passing motorists may be defined 2 very narrowly, it could not say that there are no possible facts, such as actual
knowledge of the road condition and its point of origin from a defect on the
ALFs’ property, that could meet Dyer’s burden.
The ALFs applied for a supervisory writ to this court. On January 25,
2024, this court granted the writ to docket. While the writ was pending,
Dyer amended her petition to add the City of Shreveport as a defendant.
DISCUSSION
The ALFs argue that Dyer has no viable cause of action against them
as a matter of law. They contend that allowing the suit to proceed will result
in an unjustified expansion of a premises owner’s potential liability to
unknown third parties injured on an adjacent public roadway.
The function of the peremptory exception of no cause of action is to
test the legal sufficiency of the petition, which is done by determining
whether the law affords a remedy on the facts alleged in the pleading.
Ramey v. DeCaire, 03-1299 (La. 3/19/04), 869 So. 2d 114. La. C.C.P. art.
931 states that no evidence may be introduced at any time to support or
controvert the objection that the petition fails to state a cause of action.
Therefore, the court reviews the petition and accepts well-pleaded
allegations of fact as true. Ramey, supra. All doubts are resolved in favor of
the sufficiency of the petition to afford litigants their day in court. Jackson
v. City of New Orleans, 12-2742 (La. 1/28/14), 144 So. 3d 876. The issue at
the trial of the exception of no cause of action is whether, on the face of the
petition, the plaintiff is legally entitled to the relief sought. Ramey, supra.
An appellate court’s review of a trial court’s ruling sustaining or
denying an exception of no cause of action is de novo because the exception
raises a question of law, and the trial court’s decision is based only on the 3 sufficiency of the petition. Grayson v. Gulledge, 55,214 (La. App. 2 Cir.
9/27/23), 371 So. 3d 1133, writ denied, 23-01437 (La. 1/10/24), 376 So. 3d
847.
The ALFs argue that the trial court erred in overruling the exception
of no cause of action because Dyer failed to plead facts stating a claim under
La. C.C. art. 2317.1 and because they did not owe a legal duty under the
facts alleged to protect Dyer from harm under art. 2317.1 Dyer counters that
she pled sufficient facts to establish a cause of action pursuant to La. C.C.
art. 2317.1.
The owner or custodian of a thing is answerable for damage
occasioned by its ruin, vice, or defect, only upon a showing that he knew or,
in the exercise of reasonable care, should have known of the ruin, vice, or
defect which caused the damage, that the damage could have been prevented
by the exercise of reasonable care, and that he failed to exercise such
reasonable care. La. C.C. art. 2317.1. A “defect” in a thing, for which one
having custody of the thing may be liable for damages caused, is a condition
or imperfection that poses an unreasonable risk of injury to persons
exercising ordinary care and prudence. Freeman v. West Carroll Parish
Police Jury, 54,750 (La. App. 2 Cir. 9/21/22), 349 So. 3d 637, writ denied,
22-01583 (La. 12/20/22), 352 So. 3d 83.
In Farrell v. Circle K Stores, Inc., 22-00849, pp. 5-6 (La. 3/17/23),
359 So. 3d 467, 473, the supreme court discussed the analysis under
negligence (La. C.C. art. 2315) and premises liability (art. 2317.1) claims:
Whether a claim arises in negligence under La.Civ.Code art. 2315 or in premises liability under La.Civ.Code art. 2317.1, the traditional duty/risk analysis is the same. And now, with La.Civ.Code art. 2317.1’s requirement of actual or constructive knowledge of a defect, the result under either should be the 4 same. In any event, a claim under La.Civ.Code art. 2315 typically focuses on whether the defendant’s conduct of allowing an unreasonably dangerous condition to exist on its premises is negligent, while a La.Civ.Code art. 2317.1 claim focuses on whether the thing itself is defective; i.e., unreasonably dangerous. But, when the legislature eliminated strict liability for defective things in one’s custody by adding La.Civ.Code art. 2317.1, a negligence standard replaced it. The requirements of actual or constructive knowledge of the defect and proof that the defendant could have prevented damage from the defect by exercising reasonable care evidences this shift. We will utilize a duty/risk analysis to determine whether liability exists.
Under the duty/risk analysis, the plaintiff must prove five separate elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause- in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of duty element); and, (5) proof of actual damages (the damages element). If the plaintiff fails to prove any one element by a preponderance of the evidence, the defendant is not liable.
Citations omitted.
The focus of the ALFs’ argument is that they did not owe Dyer, a
third party, any duty to protect her from hazards outside of their premises.
However, in Bufkin v. Felipe’s Louisiana, LLC, 14-0288, p. 5 (La.
10/15/14), 171 So. 3d 851, 855, the supreme court stated that “[t]he burden
for tort liability arising from a defect in a public sidewalk is generally with
the municipality, not the adjoining landowner, unless the abutting property
owner negligently caused a defect in the sidewalk.” For the purposes of our
analysis, East Kings Highway can be likened to a public sidewalk. We note
that the supreme court had earlier stated that in general, an abutting property
owner “is not liable for injuries sustained as a result of a defect in the
adjoining sidewalk or street[,]” with the exception being that the abutting
owner is responsible where the defect is created or caused by him. Arata v. 5 Orleans Capitol Stores, 219 La. 1045, 1058, 55 So. 2d 239, 244 (La. 1951).
Emphasis added.
In Ford v. City of Shreveport, 165 So. 2d 325 (La. App. 2 Cir. 1964),
Gorton, the owner of property abutting a sidewalk, was found liable for
damages after the plaintiff fell because of the defective condition of the
sidewalk. The trial court found that the sidewalk adjacent to Gorton’s
property had been almost entirely obliterated because Gorton’s heavy work
trucks had been driven over the sidewalk for more than 20 years to reach a
parking area or loading ramp. That judgment was affirmed.
In Arata, supra, the plaintiff’s son was allegedly injured when his
bike struck a defective part of a public sidewalk. The abutting property
owner operated a store. Delivery trucks and customer vehicles used a
driveway crossing over the sidewalk to reach a parking lot on the store’s
property. The father’s lawsuit against the store and others was dismissed on
an exception of no cause of action. The supreme court noted that the
petition seemed to charge the store with knowingly causing the undermining
and breaking down of the sidewalk’s foundation by maintaining an adjacent
depression on its property which together with the vehicle traffic over the
crossing led to the sidewalk defect. As such, the court was obliged to hold
that the petition stated a cause of action against the store.
Although both parties contend this is a premises liability claim
governed by La. C.C. art. 2317.1, the alleged facts suggest that it may be an
ordinary negligence claim under La. C.C. art. 2315 as the hazardous
condition was created on adjoining property. As this court stated in Ford,
the responsibility of an abutting property owner does not rest on such
6 ownership, but rather on his negligence in creating and failing to repair the
damage. Ford, supra (citing Arata, supra).
The ALFs contend that Dyer alleged the waterline froze and burst
because of extremely cold weather, which is an act of God. However, we
note that when a “force majeure” or “act of God” combines or concurs with
the conduct of a defendant to produce an injury, the defendant may be held
liable for any damages that would not have occurred but for its own conduct
or omission. Saden v. Kirby, 94-0854 (La. 9/5/95), 660 So. 2d 423.
Dyer alleged that: (1) temperatures in Shreveport fell below freezing
and residents were warned to wrap pipes and leave a drip in the line to
prevent freezing and ruptured waterlines; (2) although it is unknown if the
ALFs took steps to avoid freezing waterlines, the waterlines nevertheless
froze; (3) the water from the waterlines flooded and then froze in the travel
lanes on East Kings Highway; (4) the ALFs called a plumber to repair the
waterlines but did not clean up the ice, apply sand to make it less slick, or
warn motorists of the ice on the roadway; and (5) there was no precipitation
or other condition that would have caused Dyer to be concerned about ice on
the roadway. We emphasize that Dyer also alleged that the ALFs failed to
contact the Shreveport Police Department to provide traffic control to
prevent motorists from encountering the icy road. It is this court’s
conclusion that Dyer has pled sufficient facts to assert a cause of action.
Accordingly, we are constrained to conclude that the exception of no cause
of action was properly denied.
Finally, defendants argue that the trial court erred in applying an
erroneous standard requiring them to exclude every factual scenario and to
establish there are no possible facts that could support liability. The trial 7 court stated that “[it] cannot discount or assume that no evidence exists that
would meet [the] standard.” It also stated that it could not say that “there are
no possible facts, such as actual knowledge of the road condition and its
point of origin from a defect on Defendants’ property, that could meet
Plaintiff’s burden.” The court further stated that while it could not foresee
imposing a duty that all property owners must keep sand on hand in the
event their pipes burst and ice forms on an adjoining roadway, “[t]his does
not exclude every factual scenario in which other action could have been
taken, however, and the need to develop and evaluate those facts precludes
granting the exception.”
The trial court applied the correct standard. The general rule is that an
exception of no cause of action must be overruled unless the allegations of
the petition exclude every reasonable hypothesis other than the premise upon
which the defense is based; that is, unless the plaintiff has no cause of action
under any evidence admissible under the pleadings. Roberts v. Sewerage
and Water Bd. of New Orleans, 92-2048 (La. 3/21/94), 634 So. 2d 341; Kim
R. Smith Logging, Inc. v. Indigo Minerals LLC, 54,684 (La. App. 2 Cir.
10/12/22), 349 So. 3d 1112, writ denied, 22-01793 (La. 2/14/23), 355 So. 3d
615.
Stated another way, an exception of no cause of action should be
granted only when it appears beyond doubt that the plaintiff can prove no set
of facts in support of any claim which would entitle him to relief. Badeaux
v. Southwest Computer Bureau, Inc., 05-0612 (La. 3/17/06), 929 So. 2d
1211; Sharp v. Melton, 53,508 (La. App. 2 Cir. 5/20/20), 296 So. 3d 1135.
The ALFs’ argument is without merit.
8 CONCLUSION
For the foregoing reasons, the writ is recalled as improvidently
granted and denied. The ruling denying the exception of no cause of action
is affirmed. Costs are assessed against the ALFs.